Appeal No.	 EAT/1042/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 December 1998

Before
HIS HONOUR JUDGE J ALTMAN
MR R JACKSON
MRS M E SUNDERLAND JP

JAMAICA TAVERNS LIMITED	APPELLANTS

(1)  MR G J SPRATT
(2)  MISS J T MARSH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR P DAHLSEN
(of Counsel)
Messrs Jaswal
Solicitors
15 Crawford Street
London  W1H 1PF	

		JUDGE J. ALTMAN:	This is an appeal from the decision of that Tribunal held in Stratford on 16 June 1998.  It comes before us by way of preliminary hearing to determine whether there is any arguable point of law which justifies the appeal going forward to a full hearing before the Employment Appeal Tribunal.  I refer to the parties in their capacities before the Industrial Tribunal.

	The decision which is subject of this appeal by the Respondents was to refuse their application for a review of the main decision as to unfair dismissal and payment for results of breaches of contract which had been previously given on 26 January 1998.

	The application was in effect to review the earlier decision of the Tribunal to proceed in the absence of the Respondent.  The Respondent acted throughout through his solicitors and made as the basis of his application that the solicitors had not received the notice of the hearing and that was why they were not present.  

	A number of grounds of appeal have been raised.  First of all, it is said that there was not evidence before the Industrial Tribunal that the notice of hearing had been sent as the precursor of establishing the presumption that it had been received.  This matter was dealt with by the Tribunal in paragraph 3 of its decision.  Whilst there has been argument as to the preferred interpretation of those facts urged upon us, we can find nothing to suggest an argument that the Tribunal erred in law in taking those facts into account in the way they chose to do and making the inferences that they thought appropriate.

	Also, it was suggested that the Respondents as a matter of natural justice should have their opportunity to be heard because they as the lay clients and the real Respondents in these proceedings were not parties in any way to the transmission of notices of hearing and there had been quite a lot of correspondence with the Tribunal showing they did intend to participate.  That does not seem to us to give rise to any arguable point of law.  It is a discretionary matter.  The general submission was that there was a failure to take account of evidence and to reject evidence that was before them.  Again we find there is no point of law in that either.

	However, in a letter to this Tribunal dated 17 September 1998, the Chairman answered the affidavit of Messrs Jaswal, solicitors for the Respondents and said that they did not disbelieve his evidence.  We were referred to the case of Thomas Bishop Ltd -v- Helmville Ltd [1972] All ER p.365, but that relates to the situation where an affidavit was unchallenged and the evidence of Mr Jaswal was not unchallenged in this case.  However, it does seem to us that there is one narrow issue of law which justifies this matter going forward for a full hearing and it can be expressed as follows; whether having said in response to the affidavit of Mr Jaswal sworn on 3 September 1998, and especially in relation to paragraphs 6 and 7 of that affidavit that they did not disbelieve him, it was then open to the Tribunal as a matter of law to find that he had not rebutted the presumption in the Interpretation Act as to receipt of the notice in this case.  

	We direct that this matter be listed in Category C for two hours.  It may be that the Applicants before the Tribunal do not wish to participate in this appeal.  If so their absence will not be taken amiss, but if they wish to participate they should ensure that this Employment Appeal Tribunal is provided with an outline of their case not less than 14 days before the hearing.  The Respondents skeleton argument for this hearing will stand as the skeleton argument in the appeal.  We do not require any Notes of Evidence.